McClafferty v Greg Smith Pty Ltd (Building and Property) [2019] VCAT 299 (4 March 2019)

1. I accept it is arguable, as asserted in paragraph 10 of the proposed FAPD, that the owners' claim against the builder is an apportionable claim within the meaning of section 24 AF(a) of the Act. That is, a claim for economic loss or damage to property in an action for damages (whether in tort, in contract, under statute or otherwise) arising from a failure to take reasonable care.
2. The issue is whether the proposed FAPD adequately sets out the basis upon which it might be found that Mr Hatfield is a concurrent wrongdoer within the meaning of the Act. That is, assuming the facts and matters pleaded can be proved, will that be sufficient for a finding that Mr Hatfield is a concurrent wrongdoer within the meaning of the Act? In my view the answer is no.
3. The matters pleaded in the proposed FAPD, relevant to the assertion that Mr Hatfield is a concurrent wrongdoer within the meaning of the Act, can be briefly summarised as follows:
   • - the owners claim damages from the builder in respect of alleged unsuitable/unsatisfactory doors and windows;
   • - the builder selected Mr Hatfield (on the instruction of the architect) to manufacture and supply the doors and windows. The contract between the builder and Mr Hatfield included implied terms that the windows and doors would be manufactured and supplied in a proper and workmanlike manner and in accordance with all laws and legal requirements and with due skill and care;
   • - the doors and windows are unsuitable and/or unsatisfactory for a number of reasons as set out in the owners' Points of Claim and the expert reports; and
   • - accordingly, in respect of the owners' damages claim, Mr Hatfield is a concurrent wrongdoer within the meaning of the Act.
4. In effect, the builder says there is a causal connection between the damages claim of the owners and the actions or omissions of Mr Hatfield, and that that is enough to make Mr Hatfield a concurrent wrongdoer within the meaning of the Act.
5. Mr Hatfield and the owners say that the causal connection, that is the alleged factual causation between the acts or omissions of Mr Hatfield and the loss and damage claimed by the owners, is, on its own, not enough. They say that, for Mr Hatfield to be a concurrent wrongdoer within the meaning of the Act, there must be a legal cause of action in the hands of the owners as against Mr Hatfield. That is, the alleged acts or omissions of Mr Hatfield must be, in the hands of the owners, legally actionable acts or omissions. In this regard they rely on the decision of the Court of Appeal in St George Bank Ltd v Quinerts Pty Ltd [2009] VSCA 245.

(2007) 163 FCR 510

(2009) 25 VR 666

(2013) 247 CLR 613